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SC Explains Scope Of Remand Under Order XLI Rule 23A CPC; Appellate Courts Must Not Pass Orders Of Remand In A Routine Manner [Read Judgment]

Mehal Jain
28 April 2020 6:07 AM GMT
SC Explains Scope Of Remand Under Order XLI Rule 23A CPC; Appellate Courts Must Not Pass Orders Of Remand In A Routine Manner [Read Judgment]
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Discussing the powers of remand under the Code of Civil Procedure, the Supreme Court has reiterated that re-trial should not be ordered in a routine manner, and that the appellate court must not pass orders of remand in a routine manner.

This was in the civil appeal titled Shivakumar and others vs Sharanabasappa and others.

A bench comprising Justices A M Khanwilkar, Hemant Gupta and Dinesh Maheshwari and Hemant Gupta observed that the Appellate Court should ordinarily determine the suit finally when the evidence available is sufficient to dispose of the matter.

"A conjoint reading of Rules 23, 23A and 24 of Order XLI brings forth the scope as also contours of the powers of remand that when the available evidence is sufficient to dispose of the matter, the proper course for an Appellate Court is to follow the mandate of Rule 24 of Order XLI CPC and to determine the suit finally. It is only in such cases where the decree in challenge is reversed in appeal and a re-trial is considered necessary that the Appellate Court shall adopt the course of remanding the case".

The bench also caution against routine remand, as it would elongate the life of litigation. The appellate court should not remand the case only on the points on appreciation of evidence not dealt with by the trail court, as the appellate court itself is possessed of power to enter into facts and appreciate the evidence.

"It remains trite that order of remand is not to be passed in a routine manner because an unwarranted order of remand merely elongates the life of the litigation without serving the cause of justice. An order of remand only on the ground that the points touching the appreciation of evidence were not dealt with by the Trial Court may not be considered proper in a given case because the First Appellate Court itself is possessed of jurisdiction to enter into facts and appreciate the evidence". 

It also remains trite that an order of remand is not to be passed merely for the purpose of allowing a party to fillup the lacuna in its case, added the bench.

"It gets perforce reiterated that the occasion for remand would arise only when the factual findings of Trial Court are reversed and a re-trial is considered necessary by the Appellate Court", the Court said. 

Factual Background

The SC was considering an appeal from the High Court of Karnataka, which reversed the findings of a trial court regarding the genuineness of a Will.

In SC, it was argued that if at all the High Court found the want of requisite evidence, the proper course was to exercise the power of remand under the provisions of Order XLI Rule 23-A CPC. It was advanced that the High Court being the first Court of Appeal, ought to have given the opportunity to the appellants to adduce proper additional evidence, considering the fact that the findings were being made on suspicious circumstances other than those raised by the defendants in their pleadings and evidence.  

The bench observed that at least four disturbing, unusual features of the document in question are evident on the face of the record-

"(i) it is typewritten on 3 different sheets of paper; (ii) the placement of signatures of the testator is not of uniformity and excessive space is seen between the typewritten contents and the signatures on page number 1 and page number 5; (iii) different pens have been used for signatures on different pages with ink pen having been used for first and third signatures (on page number 1 and page number 5) and ballpoint pen having been used for the second signature (on page number 3); and (iv) all the typewritten pages do not carry the signatures of the testator, with there being no signature on page number 2 and page number 4"

"The High Court has stated such deduction after thorough examination of the material on record and, in our view, rightly so...However, the Trial Court, even while dealing with several contentions in excessive details, either failed to notice some of the features indicated above or simply brushed aside the particular feature carrying abnormality with the observations to the effect that the propounders were not to be expected to remove the suspicions concerning the document when they had no role in its execution. The Trial Court having, obviously, misdirected itself on several of the key and pivotal factors, its decision could not have been approved", the Apex Court proceeds to state, adding that "the High Court was right in reversing the decision of the Trial Court and in holding that the contested Will was not a genuine document"

WHETHER REMAND WAS CALLED FOR

The bench made its pronouncements on the scope and power of remand while rejecting the argument of the appellants that the HC should have ordered re-trial in the matter.

"...the submission of learned counsel for the appellants that the High Court ought to have considered remanding the case by taking recourse to the provision contained in Order XLI Rule 23A CPC, in our view, remains totally bereft of substance; this submission has only been noted to be rejected", remarked the bench at the outset.

The judgment acknowledges that procedure relating to appeals from original decrees (usually referred to as 'regular first appeal') is provided in Order XLI of the Code of Civil Procedure, 1908 and therein, various provisions relating to hearing of an appeal, remand of case, remitting of issues for trial, production of additional evidence in Appellate Court etc. are contained in Rules 16 to 29 under the sub-heading 'Procedure on hearing'.

Rule 23A came to be inserted in Order XLI CPC by way of the Code of Civil Procedure (Amendment) Act, 1976. Prior to this amendment, it was generally accepted by the Courts that although under Rule 23, an order of remand could be made only on reversal of a decree disposing of suit on a preliminary point but, the Appellate Court has the inherent power of remanding a case where it was considered necessary to do so in the interest of justice. Insertion of Rule 23A in Order XLI by the Amending Act of 1976 makes it explicit that even when the suit has been disposed of otherwise than on a preliminary point and the decree is reversed in appeal, the Appellate Court shall have the power of remand, if a re-trial is considered necessary.

The judgment, penned by Justice Maheshwari, places weight on Rule 24 of Order XLI that enables the Appellate Court to dispose of a case finally without a remand if the evidence on record is sufficient; notwithstanding that the Appellate Court proceeds on a ground entirely different from that on which the Trial Court had proceeded.

"A conjoint reading of Rules 23, 23A and 24 of Order XLI brings forth the scope as also contours of the powers of remand that when the available evidence is sufficient to dispose of the matter, the proper course for an Appellate Court is to follow the mandate of Rule 24 of Order XLI CPC and to determine the suit finally. It is only in such cases where the decree in challenge is reversed in appeal and a re-trial is considered necessary that the Appellate Court shall adopt the course of remanding the case", articulated the bench.

The Court further opined that its 2017 decision in Mohan Kumar v. State of Madhya Pradesh and Ors. is an apt illustration as to when the Appellate Court ought to exercise the power of remand. In the said case, the appellant and his mother had filed the civil suit against the Government and local body seeking declaration of title, perpetual injunction and for recovery of possession in respect of the land in question.

"In the given circumstances, (the Supreme Court) observed that when the High Court held that the appellant was not able to prove his title to the suit land due to non- examination of his vendor, the proper course for the High Court was to remand the case to the Trial Court by affording an opportunity to the appellant to prove his title by adducing proper evidence in addition to what had already been adduced. Obviously, this Court found that for the conclusion reached by the High Court, a case for re-trial was made out particularly when the Trial Court had otherwise held that the appellant was owner of the land in dispute and was entitled to get the encroachment removed as also to get the market value of the land", explains Justice Maheshwari.

The judgment iterates that Such cases where re- trial is considered necessary because of any particular reason and more particularly for the reason that adequate opportunity of leading sufficient evidence to a party is requisite, stand at entirely different footings than the cases where evidence has already been adduced and decision is to be rendered on appreciation of evidence. The bench was of the view It also remains trite that an order of remand is not to be passed merely for the purpose of allowing a party to fill- up the lacuna in its case. "It gets perforce reiterated that the occasion for remand would arise only when the factual findings of Trial Court are reversed and a re-trial is considered necessary by the Appellate Court", concludes Justice Maheshwari.

Reflecting that "there was no reason or occasion for the High Court to consider remanding the case to the Trial Court", the judgment elaborates that the present case had clearly been the one where the parties had adduced all their evidence, whatever they wished to; and it had not been the case of the plaintiff-appellants that they were denied any opportunity to produce any particular evidence or if the trial was vitiated because of any alike reason. Moreover, there had been several suspicious circumstances surrounding the Will in question, some of which were noticed by the Trial Court but were brushed aside by it on untenable reasons. The High Court has meticulously examined the same evidence and the same circumstances and has come to a different conclusion that appears to be sound and plausible, and does not appear suffering from any infirmity.

"We are satisfied that the High Court has rightly interfered with the decision of the Trial Court and has rightly held that the document in question cannot be accepted as the genuine Will of the deceased Sangappa; and there was no reason for the High Court to remand the case to the Trial Court...The contention in this regard is required to be, and is, rejected", declared the bench.

Case Details
Title : Shivakumar and others vs Sharanabasappa and others
Case No : Civil Appeal No. 6076 of 2009
Coram : Justices A M Khanwilkar, Hemant Gupta and Dinesh Maheshwari 


Click Here To Download Judgment

[Read Judgment]



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